It is sometimes said that newspapers shouldn’t be regulated at all, that the law alone should be enough to set limits on the culture, ethics and practices of the press. If only the police had done their job properly, this argument runs, there would never have been any call for the Leveson Inquiry and the Royal Charter.
Like so many of the self-serving or evasive arguments put forward by press bosses and columnists, this one does not stand up to any real scrutiny.
Here are five reasons why relying on the law alone cannot work.
1. The law does not deter repeat illegality. If the law alone was enough it would deter repeat offending, yet whole gangs of newspapers libelled Robert Murat, then repeat offended against Kate and Gerry McCann and then repeat offended a third time against Christopher Jefferies (and these are not the only cases). The papers monster their victims, are sued, apologise, pay up (relatively small sums) and just do it again. The papers concerned seemed to treat the penalties as if they were fees for exclusives, rather than fines for breaking the law
2. Breaches of the law are often difficult to detect. Many of the kinds of wrongs committed by the press, such as data theft and privacy intrusion, are never likely to be noticed by the victims or uncovered in a routine way by the police. It was pure chance that hacking was revealed. Only a self-regulator that is close to the industry and can uphold standards generally will prevent this.
3. The law is costly and slow moving. Proceedings in the courts are slow, inefficient and expensive, whereas a proper regulator can deal with problems quickly, efficiently and cheaply. This is good for everyone. If we used only the law to regulate newspapers then ordinary victims would not have access to a free complaints procedure. The absence of effective self-regulation at least partly explains why we are all now having to pay for big, complex police investigations. These could have been nipped in the bud if there had been a decent ethical framework for journalists.
4. The alternative is tougher laws: If we don’t have any form of press regulation we will need more and tougher laws. What else would discourage newspapers from, for example, publishing details of suicides that experts say will prompt copycat events? A good code of practice can deal with this if it is effectively enforced. Would we really prefer to pass statutes on such matters? Do we want the police raiding newsrooms or a High Court action every time a reporter sneaks into into a private family memorial event without justification?
5. The law is less effective than regulation as a check on a powerful industry. Most other important parts of society – banks, politicians, railways – are subject to scrutiny by the press, and this (alongside the law and regulation) helps keep them virtuous. In this country, however, the press itself is almost free of press scrutiny. Most newspapers maintained a conspiracy of silence on phone hacking and even ganged up on papers that broke ranks. When it came to coverage of the Leveson Inquiry most papers again hid the worst about their own record from their readers.
Brian Cathcart is the Executive Director of Hacked Off
“2. Breaches of the law are often difficult to detect. Many of the kinds of wrongs committed by the press, such as data theft and privacy intrusion, are never likely to be noticed by the victims or uncovered in a routine way by the police. It was pure chance that hacking was revealed. Only a self-regulator that is close to the industry and can uphold standards generally will prevent this.”
The first sentence is absolutely correct but the last one is a non-sequitur. How can a regulator without investigative powers be expected to prevent criminal behaviour? When a journalist was convicted of hacking royal phones several years ago, did executives on all the newspapers say “gosh, sorry chaps, it’s a fair cop, we’ll stop now”? Evidence of phone hacking has been torn from publishers through the courts and police inquiries. Can you imagine a body like Ofcom doing that? Now try to imagine a body without Ofcom’s resources doing so.
If Mr Cathcart is arguing that no journalists would have been arrested if Levesonian regulation had been in place then he should come out and say it. Otherwise he should admit that no self-regulator would have uncovered this mess and no future regulator should be expected to.
The Royal Charter has, as one of its recognition criteria that the Board must have “sufficient powers to carry out investigations both into suspected serious or systemic breaches of the code and failures to comply with directions of the Board” (Sch 3, para 18). In other words, publishers who join the regulator must agree to give it investigatory powers.
An effective regulator which was operational the time that phone hacking was going on should have learned of its existence at an early stage (perhaps by means of the “whistleblowing hotline” (para 8D) and then taken steps to investigate and require the practice to cease.
I don’t think Professor Cathcart’s argument means that no journalists would have been arrested – just that a regulator would have been more effective than the police at detecting and bringing the practice to an end. if a regulator knows the industry and “has its ear to the ground” there is a good prospect of this happening. After all it appears that “industry insiders” were well aware of phone hacking long before the police were involved.
I really can’t see that a publisher can give anyone powers to examine the phone records of a journalist with a private phone or allow the regulator to search a journalist’s home. Similarly this regulator would have no powers over external agencies such as PIs or freelance journalists.
Perhaps an effective regulator may have acted on rumours about phone-hacking in Fleet Street but I really can’t see how they could ensure it stopped without firm evidence it had happened. At which point I return to wondering what it could discover if it were limited to powers invested by contract. More than the police? Or less?
Regarding the arrests – Mr Cathcart says these things would have been “nipped in the bud” and that we would have been spared big, complex police investigations, which rather implies that he would have preferred the phone-hackers to have been given a good talking-to rather than time served.
Surely if an efficient self-regulator had investigated phone-hacking and discovered some evidence that it had been happening, what would have been the outcome? Would it simply hand over its findings to the police? What validity would that evidence have under PACE? Or would the regulator fine the publisher and not press the point further, allowing the police or CPS to say it was not in the public interest to pursue individual journalists? I’d be interested to know what sort of outcome people really expect a self-regulator to generate. People seem to imagine a body that will be stronger than the Information Commissioner’s Office.